The Oriental Insurance Company Ltd, Chennai v. Poongavanam

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 24.08.2009CORAM:THE HONOURABLE MR. JUSTICE N. KIRUBAKARAN C.M.A.No. 1024 of 2002 The Oriental Insurance Company Ltd, Chennai.. Appellant/Ist Respondent vs.

Poongavanam2.Sekar3.Bhuvanendran4.Kuppuswamy5.Kalaichelvi6.Sumathy7.T.Raja8.A.Charles Lurdhraj .. Respondents/ Claimants 1 to 6, Respondents 2 & 3R-7exparte in Lower CourtR-8 given up. The Civil Miscellaneous Appeal against the Judgement and decreein M.C.O.P No.732/1995 dated 26.06.2001 on the file of the MotorAccidents Claims Tribunal, Prl. Subordinate Court, Villupuram. For Appellant : Mr.N.VijayaraghavanFor Respondents : Mr.R.Saseetharan for RR1-R6ORDERThe appeal has been preferred by the Insurance Company against the award a sum of Rs.93,600/- to the respondents 1-6/claimants as against the claim of Rs.2,00,000/-.

This case of the respondents/claimants of the Tribunal was that one Mr.Kathirvelu died in the accident occurred on 06.07.1989when he was standing on the road side when the Maruti Car belonging to the eighth respondent driven by the seventh respondent in a rash and negligent manner suddenly hit him and he died on the spot. Hencethe claim petition and the same was resisted by the appellantInsurance Company. https://hcservices.ecourts.gov.in/hcservices/

On appreciation of pleadings and evidence on record, the Tribunal came to the conclusion that the accident occurred because of the rash and negligent driving of the Maruti Car by the seventh respondent and fixed the liability on the seventh respondent driver and appellant Insurance company. As against the said award the present appeal has been preferred by the Insurance Company.

Mr.N.Vijayakumar learned counsel for the Appellant attacked the award stating that there is no insurance coverage to the MarutiCar (the offending car) on the date of the accident and that the said fact was stated in the paragraph 7 of the counter statement filed by the appellant before the Tribunal. He further submitted that without considering of the counter statement, the Tribunal fixed the liability on the appellant company stating that the appellant did not deny the Insurance details given in the claim petition.

A perusal of the award and the records would show that the award passed by the Tribunal is based on the materials placed before it.

Regarding the Insurance details in Claim No.6 of the claim petition, it was stated as follows:-Name and address of the : The Oriental Insurance Company Insurer of the vehicle Madras Policy No.4114/MV/9025When the details were given, it is bounden duty of the InsuranceCompany to verify the details given in the claim petition with their office records and prepare the counter statement based on that. Ithas been decided in United India Insurance Company Mr. Venkataramanreported in 2003 of page No.31 wherein a Division Bench of this Courtheld that the duty of the Insurance Company is to make a search in the office and produce necessary evidence, in case it takes a stand that on the particular date there was no policy. In this case the policy details, the claim no. and details of the vehicle and name of the owner of the vehicle and crime no and the Police station were given when such the compensation, nothing prevented the InsuranceCompany from searching its office with available documents on the information and find out whether there was any Insurance policy available to the vehicle. In this case the Insurance Companymiserably failed to do the same.

Apart from that the accident occurred as early as on06.07.1989 and the claim petition was filed on 06.07.1990 that is beyond the period of limitation i.e six months under old MotorVehicle Act 1939. Along with condone delay petition only, the OP was filed and the delay petition was allowed after service the summons to the appellant. The appellant Insurance Company did not find out the correct position and file counter affidavit in the condone delay https://hcservices.ecourts.gov.in/hcservices/ petition. After condonation of delay, in the main claim petition summons was served on the appellant Insurance Company. Since the appellant did not appear before the Tribunal, the ex-parte order was passed on 10.06.1997. To set aside the ex-parte order a petition was filed by the appellant on 18.06.1997. After setting aside the ex-parte order, a counter statement was filed on 28.11.1997. From06.07.1990 till 28.11.1997, the appellant Insurance Company had sufficient time to verify the records whether the particular vehicle was insured with the appellant-Insurance company, especially when the details regarding the Insurance policy were given in column No.16 of the claim petition.

Without verification and denying the existence of Insurancepolicy, a counter was filed on behalf of the Insurance Company on28.11.1997. Paragraph 7 of the counter statement generally denies the Insurance policy as follows:-" That this respondent does not admit that the vehicle bearing registration No.TSR-1555 alleged to have caused the accident was insured with this respondent at the time of accident as stated by the petitioners in the claim petition and also denies that it had valid RC, FC and driver of the Vehicle had a valid licence to drive the vehicle at the time of accident".

The allegation made in paragraph 7 would not constitute adenial, when specific details regarding the Insurance coverage was given and the long time viz., 7 years was available for the InsuranceCompany to verify the same, it ought to have categorically denied the Insurance details by way of specific denial. In the absence of any specific denial, it would constitute deemed admission on the part of the Insurance Company.

Apart from that the learned counsel for the appellant contented that the additional counter statement was prepared and apetition was filed before the Tribunal to receive the additional counter statement. However, the petition was dismissed by the Tribunal and no appeal was filed against the said dismissal of the petition to receive the additional counter statement. The learned counsel for the appellant contented that the additional counterstatement specifically denied the insurance details and there was no coverage to the offending vehicle. As rightly observed by the Tribunal when there was no appeal against the dismissal order, it has reached the finality and nothing could be spoken about the details which were stated to have made in the additional counter statement.

No doubt the RW-1 spoke about the denial of the Insurancedetails in the additional counter statement. In the absence of any pleading to that effect, RW-1 should not have been allowed to speak https://hcservices.ecourts.gov.in/hcservices/ about the denial regarding Insurance coverage in his evidence. Thefollowing is the extract of RW-1 which are necessary for judicationof the issue before the Court. "06/07/1989y; Vw;gl;l tHf;F rk; ge; jkhf ,e;j tHf;F nghlg; gl; Ls;sJ/ ,e;j tHf;F 06/07/1990y; jhf; fy; bra; ag; gl; Ls;sJ vdpy; rhpjhd;/ mg; nghJs;seilKiwg; go fhyjhkjj; ij kd; dpf; FkhW v';fSf;F xU rk; kd; te; jJ.mg; nghJ v';fs; fk; bgdp rhh; ghf M$uhfp ,k;khjphp v';fSf;F ghyprp ,y;iyvd;W brhy; ytpy; iy vdpy; Mk;jhd;/ mJ vf;!;ghh; oahdJ. gpd; dho ,k;kD10/06/1997y; itf; fg; gl; lJ. mg; nghJk; v';fs; fk; bgdp rhh; ghf M$uhftpy; iyvd; why; rhpjhd;/ mjd; gpd; 18/06/1997y; jhd; me;j vf;!;ghh;o ofphpiauj; Jbra;a kDr;bra; njd;. eh';fs; v';fs; Ml;nrgidapYk; ,e;j tpra';fisbrhy; ypa[s;nshk; vdpy; rhpjhd;/ v';fsJ bkapd; ft[z;lhpy; ,e;j khjphpfhh; ,d;R{ud;!; gz; ztpy; iy vd;W brhy; ytpy; iy vdpy; rhpjhd;/ ,e;j khjphpeh';fs; v';fs; kDtpy; ,d;R{ud;!; gz; ztpy; iy vd;W Fwpg; gpl;L Twtpy; iyvd; why; rhpjhd;/ kDtpy; Fwpg; gpl; Ls;s ghyprp vz; izf; Fwpg; gpl;L eh';fs; kWf;ftpy; iy vd; why; rhpjhd;. 09/06/1999y; me;j mk; khit tprhhpf; Fk;nghJk; ,e;j fhiu v';fsplk; ,d;R{ud;!; bra; atpy; iy vd;W nfl; ftpy; iy vd; why; rhpjhd;."The aforesaid evidence of RW-1 would show that the insurance company was sleeping over the counter without verifying the records and incorporating the denial of insurance details in the counterstatement.

As far as the respondents/claimants are concerned they discharged their burden by giving the details of the car insurance crime no., police station in whose jurisdiction the accident occurred. After giving those details, the burden shifted to the Insurance company. In the absence of denial in the counter statement denying the details given by the claimants, the respondent/claimanthas to succeed. Accordingly, the Tribunal fixed the liability to bepaid by the car driver and the Insurance company. The finding with regard to the insurance policy were given in paragraph 6 of the awardin a detailed manner by the Tribunal. The findings of the Tribunal is based on the evidence and they cannot be disturbed, accordingly they are sustained.

As far as the negligence is concerned, it is not so seriously challenged. In any event the accident occurred due to therash and negligence driving of the Maruti Car driven by the seventh respondent. Based on Ex.A-1 FIR and PW-2 eyewitness, the Tribunalcorrectly came to the conclusion the accident occurred because of therash and negligence driving of the Maruthi car. Hence the finding regarding negligence is based on evidence and the same cannot be https://hcservices.ecourts.gov.in/hcservices/ disturbed.

In this case the first respondent is the widow and respondents 2-6 are the children of the deceased. Since no amount was given with regard to consortium, love and affection, transportation and funeral expenses, it is appropriate to award amounts even in the absence of any appeal by the claimants. Since the first respondent was aged about 50 years, it is appropriate to award a sum ofRs.15,000/- towards loss of consortium and respondents 2-6 are entitled to sum of Rs.20,000/- in toto, for funeral expenses a sum ofRs.1,000/- towards transportation a sum of Rs.500/-15. The Hon'ble Supreme Court in a number of cases held that even in the absence of appeal/ cross appeal by the claimants, this Court has got jurisdiction and powers Under 41 Rule 33 of CPC to enhance the compensation. In Nagappa Vs. Gurudayal Singh reported in2003 (2) SSC 274, The TNSTC Vs Saroja and other reported in 2008 (1)TNMAC 352. State of Punjab Vs Bakshish Singh reported in 1998(8) SSCpage 222, the Hon'ble Supreme Court held that the compensation could be enhanced even in the absence of any appeals/ cross appeals by the claimant. Accordingly, the award of the Tribunal is enhanced from asum of Rs.93,600/- to Rs.1,30,100/- in the following manner. Loss of Income Rs. 93,600/-Loss of Consortium to R1 Rs. 15,000/- Loss of love and affection to R2-R6 Rs. 20,000/-Funeral expenses Rs. 1,000/-Transportation Rs. 500/- ---------------------- Rs.1,30,100/- ------------------------16. The said amount will carry interest at the rate of 9% as given by the Tribunal. The above terms the appeal is disposed. Nocosts. Sd/Asst. Registrar/true copy/Sub Asst. Registrarpbn https://hcservices.ecourts.gov.in/hcservices/ ToThe Motor Accidents Claims Tribunal, Prl. Subordinate Court, Villupuram. Copy to The Section Officers,v.R.Section, High Court, Madras.1 cc To Mr.N.Vijayaraghavan, Advocate, SR.41512C.M.A.No.1024 of 2002pkb(co)pmk.05.10.2009